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Covid-19 inSL: the need of the hour

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These are indeed tedious days when a state of cataclysmic pandemonium reigns supreme. The nasty little blot of a coronavirus is causing absolute havoc and untold misery right around the globe. In fact, it has totally controlled the world for the last eighteen months or so and there is no respite in sight. Instead, there is tremendous uncertainty, unbridled anxiety and unmitigated doubt about the future. People are looking for the light at the end of the tunnel but to all intents and purposes, there is none to be seen; not as yet anyway. As for us, there is utter despair in the entirety of this island nation.

1. There are worrying stories of all kinds; of viral mutants and variants, of the blck fungus and the Covid tongue, our closest neighbour India reeling under the likes of an onslaught hitherto unseen, our local politicians blaming each other, health personnel advising on many aspects of control measures that need to be undertaken to curtail the further uninhibited spread of CORONA-19, the economy of the paradise isle being in shambles, our inability to get adequate stocks of effective corona vaccines, the education of the young being a poignant picture of a debacle, the government in a quandary being caught between the devil and the deep blue sea.., and the list goes on and on and on. Add to all these woes, the spectacle of some recalcitrant lawmakers, and the eternally hostile picture is somewhat complete; well…, almost.

The buzz-words, TOTAL LOCKDOWN, CURFEW and COMMUNITY-SPREAD are anathema to many, including the decision-makers. They avoid using them, particularly the last one, as much as possible. However, as for these words which many of our powers-that-be detest, we can only say with sincere apologies to the great bard William Shakespeare, for paraphrasing what he wrote in Romeo and Juliet; even excreta by any other name would smell as bad.

The common man, every single citizen of our beautiful island, is most regrettably and sadly caught in the crossfire. They are suffering mentally and physically, as they have never ever been called upon to vacillate before. Their travails are never-ending and there does not appear to be a decent future for us. It is perhaps time for this writer to attempt to drop his medical leanings and put himself in the shoes of the common man who was responsible for the societal position that the writer holds now. What can we do as a nation? How can we, even as individuals, do our bit to save our homeland?

It is quite relevant to remind our populace of the iconic words of President John Fitzgerald Kennedy, the 35th and the youngest-ever Head of State of the United States of America, as he proclaimed during his Inaugural Address on 20th January 1961. Those immortal words were “And so, my fellow Americans: ask not what your country can do for you—ask what you can do for your country”. Well…, substitute the phrase ‘Sri Lankans’ to the word ‘Americans’ and there you have it. What can we ask for and certainly do, for our little island?

Indeed, there is a whole lot that we, the common citizens of this resplendent isle, can do at present. We simply have to do all we can to prevent the spread of the virus, avert untold misery, cut down on the increasing demands made on the medical services to prevent their being completely overwhelmed, and most importantly, prevent deaths.

Currently, there are selective lockdowns and prohibition of all kinds of unnecessary human movements imposed in the island. It is the prime duty of every single one of us to abide by these requirements. Is it really necessary for the police to have checkpoints, arrest violators of the strict instructions issued by the authorities? Should compliance with the instructions be undertaken only because of possible punitive actions that may be taken by the forces? Should it not be through our dedication to Mother Lanka? Let us face it, compliance should be by wilful cooperation rather than by enforced compulsion. Should it not be because of the conviction that it is for the greater good of the entire nation? Where is the public-spiritedness of our people? Where is our social responsibility? There you are, Sri Lankans; it is for every one of us and our children.

The vaccines will come in adequate amounts in due course. The state is making a committed and determined effort to get the vaccines and immunise the entirety of the vulnerable population. However, it is likely to take some time and once the necessary doses are administered, it will take months to kick in with the necessary quantum of herd immunity. Yet for all that, what about the despicable lot of queue jumpers, the influential and the rich who managed to circumvent all principles of prioritisation based on clinical and epidemiological needs? They have so far behaved with a degree of selfishness that is intensely contemptible, to say the least.

It is of the essence and absolutely vital that every single one of us takes it upon ourselves as a sacred duty to abide by all the health guidelines to try and win this war against an unseen enemy. We cannot help but even shout from the rooftops about the undisputed importance of the benefits to be accrued by social distancing, washing of hands and the proper donning of face masks.

These should be the immediate measures that need to be implemented by one and all, come what may and come rain or sunshine. There is compelling evidence from those countries that have been successful in controlling this pandemic that these public health measures do work, ever so well at that.

In fact, in the circumstances that we are in now, even double-masking, with the most effective mask being worn to be in direct contact with the skin of the face with the less effective ones like cloth masks being worn over them, would be an effective step in the right direction. Even those who are adequately vaccinated must follow these basic preventive measures as it is well-known that even those who are vaccinated could still contract the virus and thereby contribute towards its spread.

 

The 32nd President-to-be of the United States of America, Franklin Delano Roosevelt, in the Acceptance Speech of his nomination as the Democratic Party candidate at the 1936 Democratic National Convention said “To some generations, much is given. Of other generations, much is expected. This generation of Americans, has a rendezvous with destiny”. At this crucial juncture, we in Sri Lanka do indeed have a date and a rendezvous with our destiny. We are called upon to frame our future. It is entirely up to us to decide whether we survive this catastrophe or perish. Let us, each one of us, resolve to put our house in order BEFORE we try to apportion the blame for the goings-on fairly and squarely on the doorsteps of others.

We have come through three periods of occupation and domination of our land by Western powers, we have suffered the vagaries of two World Wars, we have survived civil strife and insurrections many a time, and more than anything, we have withstood the 30-year onslaught and civil war by a terrorist ensemble that has the unsurpassed reputation of being the most ruthless and merciless, that our planet has ever seen. We have shown our resilience in the face of adversity, time and time again. It is time, yet again, to let our history repeat itself.

All it needs is our dedicated and unbridled commitment to the cause, together with, of course, censorial and unbending leadership of the highest mettle to guide us.



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TNGlive relieving boredom

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Yes, indeed, the going is tough for everyone, due to the pandemic, and performers seem to be very badly hit, due to the lockdowns.

Our local artistes are feeling the heat and so are their counterparts in most Indian cities.

However, to relieve themselves of the boredom, while staying at home, quite a few entertaining Indian artistes, especially from the Anglo-Indian scene, have showcased their talents on the very popular social media platform TNGlive.

And, there’s plenty of variety – not just confined to the oldies, or the current pop stuff; there’s something for everyone. And, some of the performers are exceptionally good.

Lynette John is one such artiste. She hails from Lucknow, Uttar Pradesh, and she was quite impressive, with her tribute to American singer Patsy Cline.

She was featured last Thursday, as well (June 10), on TNGlive, in a programme, titled ‘Love Songs Special,’ and didn’t she keep viewers spellbound – with her power-packed vocals, and injecting the real ‘feel’ into the songs she sang.

What an awesome performance.

Well, if you want to be a part of the TNGlive scene, showcasing your talents, contact Melantha Perera, on 0773958888.

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Supreme Court on Port City Bill: Implications for Fundamental Rights and Devolution

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The determination of the Supreme Court on the Colombo Port City Economic Commission Bill was that as many as 26 provisions of the Bill were inconsistent with the Constitution and required to be passed by a two-thirds majority in Parliament. The Court further determined that nine provisions of the Bill also required the approval of the people at a referendum.

Among the grounds of challenge was that the Bill effectively undermined the sovereignty and territorial integrity of Sri Lanka and infringed on the sovereignty of the people. It was argued that several provisions undermined the legislative power of the People reposed on Parliament. Several provisions were challenged as violating fundamental rights of the People and consequently violating Article 3, read with Article 4(d) of the Constitution. Another ground of challenge was that the Bill contained provisions that dealt with subjects that fall within the ambit of the Provincial Council List and thus had to be referred to every Provincial Council for the expression of its views thereon as required by Article 154G(3).

 

Applicable constitutional provisions

Article 3 of our Constitution recognises that “[i]n the Republic of Sri Lanka, sovereignty is in the People and is inalienable”. Article 3 further provides that “Sovereignty includes the powers of government, fundamental rights and the franchise”. Article 3 is entrenched in the sense that a Bill inconsistent with it must by virtue of Article 83 be passed by a two-thirds majority in Parliament and approved by the people at a referendum.

Article 4 lays down the manner in which sovereignty shall be exercised and enjoyed. For example, Article 4(d) requires that “fundamental rights which are by the Constitution declared and recognised shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided”. Article 4 is not mentioned in Article 83. In its determinations on the Eighteenth Amendment to the Constitution Bill, 2002 and the 19th Amendment to the Constitution Bill, 2002, a seven-member Bench of the Supreme Court noted with approval that the Court had ruled in a series of cases that Article 3 is linked up with Article 4 and that the said Articles should be read together. This line of reasoning was followed by the Court in its determination on the 20th Amendment to the Constitution Bill.

Under Article 154G(3), Parliament may legislate on matters in the Provincial Council List but under certain conditions. A Bill on a matter in the Provincial Council List must be referred by the President, after its publication in the Gazette and before it is placed in the Order Paper of Parliament, to every Provincial Council for the expression of its views thereon. If every Council agrees to the passing of the Bill, it may be passed by a simple majority. But if one or more Councils do not agree, a two-thirds majority is required if the law is to be applicable in all Provinces, including those that did not agree. If passed by a simple majority, the law will be applicable only in the Provinces that agreed.

 

Violation of fundamental rights and need for a referendum

Several petitioners alleged that certain provisions of the Port City Bill violated fundamental rights. The rights referred to were mainly Article 12(1)—equality before the law and equal protection of the law, Article 14(1)(g)—freedom to engage in a lawful occupation, profession, trade, business or enterprise— and Article 14(1)(h)—freedom of movement. Some petitioners specifically averred that provisions that violated fundamental rights consequently violated Articles 3 and 4 and thus needed people’s approval at a referendum.

The Supreme Court determined that several provisions of the Bill violated various fundamental rights and thus were required to be passed by a two-thirds majority in Parliament. The question of whether the said provisions consequently violated Article 4(d) and thus Article 3 and therefore required the approval of the People at a referendum was not ruled on.

The Essential Public Services Bill, 1979 was challenged as being violative of both Article 11 (cruel, degrading or inhuman punishment) and Article 14. Mr. H.L. de Silva argued that a Bill that violates any fundamental right is also inconsistent with Article 4(d) and, therefore, with Article 3. The Supreme Court held that the Bill violated Article 11 but not Article 14. Since a Bill that violates Article 11 has, in any case, to be approved at a referendum as Article 11 is listed in Article 83, the Court declined to decide on whether the Bill offended Article 3 as well, as it “is a well-known principle of constitutional law that a court should not decide a constitutional issue unless it is directly relevant to the case before it.”

A clear decision on the issue came about in the case of the 18th Amendment to the Constitution Bill; a seven-member Bench of the Supreme Court held that the exclusion of the decisions of the Constitutional Council from the fundamental rights jurisdiction of the Court was inconsistent with Articles 12 (1) and 17 (remedy for the infringement of fundamental rights by executive action) and consequently inconsistent with Article 3, necessitating the approval of the Bill at a referendum.

When the 20th Amendment to the Constitution Bill sought to restore the immunity of the President in respect fundamental rights applications, the Supreme Court determined that the “People’s entitlement to remedy under Article 17 is absolute and is a direct expression of People’s fundamental rights under Article 3 of the Constitution.”

In the case of the Port City Bill, however, the Supreme Court only determined that certain provisions of the Bill violated fundamental rights and thus required a two-thirds majority, but did not go further to say that the offending provisions also required approval of the people at a referendum.

Perhaps, the Court took into consideration the Attorney-General’s assurance during the hearing that the impugned clauses would be amended at the committee stage in Parliament.

However, Parliament is not bound by the Attorney-General’s assurances. In the absence of a clear determination that the clauses concerned required a referendum as well, Parliament could have passed the clauses by a two-thirds majority. The danger inherent in the Supreme Court holding that a provision of a Bill violates fundamental rights and requires a two-thirds majority but makes no reference to the requirement of a referendum is that a government with a two-thirds majority is free to violate fundamental rights, and hence the sovereignty of the People by using such majority. It is respectfully submitted that the Court should, whenever it finds that a provision violates fundamental rights, declare that Article 3 is also violated and a referendum is necessary, as it did in the cases mentioned.

 

The need to refer the Bill to Provincial Councils

The Port City Bill had not been referred to the Provincial Councils, all the Provincial Councils having been dissolved. The Court, following earlier decisions, held that in the absence of constituted Provincial Councils, referring the Bill to all Provincial Councils is an act which could not possibly be performed.

In the case of the Divineguma II Bill, the question arose as to the applicability of the Bill to the Northern Provincial Council, which was not constituted at that time. The Court held while the Bill cannot possibly be referred to a Council that had not been constituted, the views of the Governor (who had purported to express consent) could not be considered as the views of the Council. In the circumstances, the only workable interpretation is that since the views of one Provincial Council cannot be obtained due to it being not constituted, the Bill would require to be passed by a two-thirds majority. Although not explicitly stated by the Court, this would mean that if the Bill is passed by a simple majority only, it will not apply in the Northern Province. The Bill was passed in Parliament by a two-thirds majority. The Divineguma II Bench comprised Shirani Bandaranayake CJ and Justices Amaratunga and Sripavan, and it is well-known that the decision and the decision on the Divineguma I Bill cost Chief Justice Bandaranayake her position.

It is submitted that Article 154G (3) has two requirements—one procedural and one substantive. The former is that a Bill on any matter in the Provincial Council List must be referred to all Provincial Councils. The latter is that in the absence of the consent of all Provincial Councils, the Bill must be passed by a two-thirds majority if it is to apply to the whole country. If such a Bill is passed only by a simple majority, it would apply only in the Provinces which have consented.

The Divineguma II determination accords with the ultimate object of Article 154G(3), namely, that a Bill can be imposed on a Province whose Provincial Council has not consented to it only by a two-thirds majority. It also accords with the spirit of devolution.

A necessary consequence of the Court’s determination on the Port City Bill is that it permits a government to impose a Bill on a Provincial Council matter on a “disobedient” Province by a simple majority once the Provincial Council is dissolved and before an election is held. What is worse is that at a time when all Provincial Councils are dissolved, such as now, a Bill that is detrimental to devolution can be so imposed on the entire country. It is submitted that this issue should be re-visited when the next Bill on a Provincial Council matter is presented and the Supreme Court invited to make a determination that accords with the spirit of devolution, which is an essential part of the spirit of our Constitution.

 

 

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‘Down On My Knees’ inspires Suzi

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There are certain songs that inspire us a great deal – perhaps the music, the lyrics, etc.

Singer Suzi Fluckiger (better known as Suzi Croner, to Sri Lankans) went ga-ga when she heard the song ‘Down On My Knees’ – first the version by Eric Guest, from India, then the original version by Freddie Spires, and then another version by an Indian band, called Circle of Love.

Suzi was so inspired by the lyrics of this particular song that she immediately went into action, and within a few days, she came up with her version of ‘Down On My knees.’

In an exclusive chit-chat, with The Island Star Track, she said she is now working on a video, for this particular song.

“The moment I heard ‘Down On My Knees,’ I fell in love with the inspiring lyrics, and the music, and I thought to myself I, too, need to express my feelings, through this beautiful song.

“I’ve already completed the audio and I’m now working on the video, and no sooner it’s ready, I will do the needful, on social media.”

Suzi also mentioned to us that this month (June), four years ago, she lost her husband Roli Fluckiger.

“It’s sad when you lose the person you love but, then, we all have to depart, one day. And, with that in mind, I believe it’s imperative that we fill our hearts with love and do good…always.”

A few decades ago, Suzi and the group Friends were not only immensely popular, in Sri Lanka, but abroad, as well – especially in Europe.

In Colombo, the Friends fan club had a membership of over 1500 members. For a local band, that’s a big scene, indeed!

In Switzerland, where she now resides, Suzi is doing the solo scene and was happy that the lockdown, in her part of the world, has finally been lifted.

Her first gig, since the lockdown (which came into force on December 18th, 2020), was at a restaurant, called Flavours of India, with her singing partner from the Philippines, Sean, who now resides in Switzerland. (Sean was seen performing with Suzi on the TNGlive platform, on social media, a few weeks ago).

“It was an enjoyable event, with those present having a great time. I, too, loved doing my thing, after almost six months.’

Of course, there are still certain restrictions, said Suzi – only four to a table and a maximum crowd of 50.

“Weekends are going to be busy for me, as I already have work coming my way, and I’m now eagerly looking forward to going out…on stage, performing.”

In the meanwhile, Suzi will continue to entertain her fans, and music lovers, on TNGlive – whenever time permits, she said,

She has already done three shows, on TNGlive – the last was with her Filipino friend, Sean.

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